Karnataka High Court
M/S Prakruthi Developers vs B.N. Girijamma on 5 September, 2023
Bench: H T Prasad
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NC: 2023:KHC:31928
MFA No. 3582 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 3582 OF 2023 (CPC)
BETWEEN:
1. M/S PRAKRUTHI DEVELOPERS
A REGISTERED PARTNERSHIP FIRM
REPRESENTED BY ONE OF ITS PARTNER
B.N.BALAKRISHNA
AGED 44 YEARS
S/O LATE B.N. NARASIMHULU
NAIDU, HAVING ITS REGISTERED OFFICE
AT NO.1, PRAKRUTHI
4TH FLOOR, 1ST A CROSS
SAI NAGAR, AREHALLI
BENGALURU - 560061.
2. MR. B.N. BALAKRISHNA
AGED ABOUT 44 YEARS
S/O LATE B.N. NARASIMHULU NAIDU
Digitally signed PARTNER OF M/S PRAKRUTHI DEVELOPERS
by HAVING ITS REGISTERED OFFICE AT NO.1
DHANALAKSHMI PRAKRUTHI, 4TH FLOOR, 1ST A CROSS
MURTHY
Location: High SAI NAGAR, AREHALLI
Court of BENGALURU - 560061.
Karnataka ...APPELLANTS
(BY SRI. RUDRABHUSHAN C B. AND
SRI. KUSHAL KUMAR, ADVOCATES)
AND:
1. B.N. GIRIJAMMA
AGED 79 YEARS
W/O LATE B.N. NARAYAN SWAMY
REPRESENTED BY ITS SPECIAL
POWER OF ATTORNEY HOLDER
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MFA No. 3582 of 2023
B.N. VASUDEVA MURTHY
AGED 50 YEARS
S/O B.N. GIRIJAMMA
R/AT NO. 3196, PATHAR BUILDING
OPPOSITE APMC YARD
LAXMIPURA 2ND BLOCK
ARASIKERE - 573103
HASSAN DISTRICT.
2. B.S.MANJUNATH
AGED ABOUT 53 YEARS
S/O LATE B.N. SEETHARAMAIAH
R/AT NO.17, 1ST CROSS, SBI LAYOUT
BTM LAYOUT, 4TH STAGE
BANGALORE - 560076.
3. KAMALA N.S.
AGED ABOUT 50 YEARS
W/O B.S. MANJUNATHA
R/AT HOUSE NO.29
SBI COLONY, NEW LAYOUT
NEAR BUS STOP, DEVARACHIKKANAHALLI
BANGALORE - 560076.
4. PRAJNA. M
AGED 21 YEARS
D/O B.S. MANJUNATH
R/AT HOUSE NO.216
2ND E CROSS, GIRINAGAR 1ST PHASE
BANASHANKARI 3RD STAGE
BANGALORE - 560085.
5. B.S. RAGHUNATH
AGED ABOUT 50 YEARS
S/O LATE B.N. SEETHARAMAIAH
R/AT NO.17, 1ST CROSS, SBI LAYOUT
BTM LAYOUT, 4TH STAGE
BANGALORE - 560076.
6. B.N. GIRIJAMMA
AGED ABOUT 74 YEARS
W/O LATE B.N. NARAYAN SWAMY
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MFA No. 3582 of 2023
R/AT NO.17, 1ST CROSS, SBI LAYOUT
BTM LAYOUT, 4TH STAGE
BANGALORE - 560076.
7. B.N. GIRIJAMMA
AGED ABOUT 74 YEARS
W/O LATE B.N. NARAYAN SWAMY
R/AT NO.17,1ST CROSS, SBI LAYOUT
BTM LAYOUT, 4TH STAGE
BANGALORE - 560076.
8. B.N. MANJUNATHA
AGED ABOUT 55 YEARS
S/O LATE B.N. NARAYANSWAMY
R/AT NO.17, 1ST CROSS, SBI LAYOUT
BTM LAYOUT, 4TH STAGE
BANGALORE - 560076.
9. H.S. PAWAN KASHYAP
AGED ABOUT 31 YEARS
S/O L. SRINIVAS
R/AT NO.135, KRUTHIKA
LAKSHMANAPA GARDEN, BSK 3RD STAGE
BANGALORE - 560085.
10. MALASHREE. V
AGED ABOUT 31 YEARS
W/O H.S. PAWAN KASHYAP
R/AT NO.135, KRUTHIKA
LAKSHMANAPA GARDEN
BSK 3RD STAGE, BANGALORE - 560085.
11. SRINIDHI H.S.
AGED ABOUT 22 YEARS
S/O SIDDARAMESH. H.G.
R/AT NO.1291, SRI HARI PARADISE
14TH CROSS, 2ND PHASE
GIRINAGAR, BANASHANKARI 3RD STAGE
BENGALURU - 560085.
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MFA No. 3582 of 2023
12. VENUGOPAL A.C.
AGED ABOUT 55 YEARS
S/O CHIKKANNA A
R/AT 8/9, 13TH CROSS, 2ND MAIN
NEAR YALLAMMA TEMPLE
S.R.NAGAR, BANGALORE - 560027.
13. LOHITH V
AGED ABOUT 25 YEARS
S/O VENUGOPAL A.C.
R/AT NO. 8/9, 13TH CROSS
2ND MAIN ROAD
NEAR YALLAMMA TEMPLE
S.R.NAGAR, BANGALORE - 560027.
14. INDRAMMA
AGED ABOUT 70 YEARS
W/O S.R. CHANDRAPPA
R/AT NO.62, 2ND CROSS
3RD PHASE, 3RD BLOCK
ANNAKUTEERA HOTEL
KATRIGUPPE, BANGALORE SOUTH
BANASHANKARI III STAGE
BANGALORE - 560085.
15. LOHITH
AGED ABOUT 39 YEARS
S/O S R CHANDRAPPA
R/AT NO.62, 2ND CROSS
3RD PHASE, 3RD BLOCK
ANNAKUTEERA HOSTEL
KATRIGUPPE, BANGALORE SOUTH
BANASHANKARI III STAGE
BANGALORE - 560085.
16. RAJESH M.R.
MAJOR
S/O LATE RAMACHANDRA M.S.
R/AT 1175, 18TH MAIN, 3RD CROSS
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AVALAHALLI MAIN ROAD
SRINAGAR, BANGALORE - 560050.
17. SENIOR SUB-REGISTRAR
JIGANI, BASAVANAGUDI
SUB-REGISTRAR OFFICE
HOUSE NO. 459/39/2
BANNERGHATTA VILLAGE
OPPOSITE POLICE STATION
BANNERGHATTA JIGANI
BANGALORE - 560105.
18. SENIOR SUB-REGISTRAR CHAMARAJPETE
BASAVANAGUDI (CHAMARAJPETE)
SUB-REGISTRAR OFFICE
3RD MAIN ROAD
NEAR RAMESHWARA TEMPLE
CHAMARAJPET, BANGALORE - 560018
...RESPONDENTS
(BY SRI. ASHOK MESTA., ADVOCATE FOR R1:
SMT. SAVITHRAMMA, AGA FOR R17 & R18)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED:20.02.2023 PASSED ON I.A.
NO.IV IN O.S.NO.1588/2022 ON THE FILE OF THE LIX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY (CCH-60), ALLOWING THE I.A. NO.4 FILED UNDER
ORDER XXXIX RULE 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 3582 of 2023
JUDGMENT
This appeal is filed by the defendant Nos. 5 and 6
under Order 43 rule 1(r) of the Civil Procedure Code
challenging the order dated 20.02.2022 passed by the LIX
VI Addl. City Civil and Sessions Judge (CCH-60),
Bengaluru in O.S.No.1588/2022, whereby the application
filed under Order 39 Rules 1 and 2 of CPC is allowed.
2. For the sake of convenience, the parties are
referred to as per their rankings before the trial court.
3. The plaintiff filed a suit for declaration and
injunction. Along with the plaint she has filed IA No.4
under Order 39 Rules 1 and 2 of CPC for grant of
temporary injunction restraining the defendants from
selling, mortgaging, leasing or creating any third party
right of interest in respect of the suit schedule 'B'
property. After service of summons, the defendants have
appeared through counsel and filed a written statement.
After hearing the parties and considering the materials
available on record, the trial court allowed IA No.4 filed
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under Order 39 Rules 1 and 2 and restrained the
defendants from selling, mortgaging, leasing or creating
any third party right of interest in respect of the suit
schedule 'B' property. Being aggrieved by the same,
defendant Nos.5 and 6 have filed this appeal.
4. The learned counsel appearing for the
appellants/defendant Nos.5 and 6 has contended that the
trial court, while considering the application for interim
injunction, has decided the title of the property. The trial
court has erred in pre-judging the issue before the parties
have undergone trial. Therefore, the impugned order is
unsustainable and it is contrary to Order 39 Rules 1 and 2
of CPC. He further contended that the defendants are
already in possession and they have put up construction
and some portion of the property has been alienated. At
this stage, the trial court has erred in granting such a
relief. Hence, he sought for allowing the appeal.
5. Per contra, learned counsel appearing for the
respondent No.1/plaintiff has contended that considering
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MFA No. 3582 of 2023
the materials available on record and submission of the
parties, the trial court has rightly granted an injunction.
Hence, he sought for dismissal of the appeal.
6. Be that as it may. Since the parties are disputing
regarding the possession of the property, the trial court
while considering the application under Order 39 Rules 1
and 2, has erred in giving a finding in respect of the title of
the property.
7. Accordingly, I pass the following order:
(i) The appeal is allowed.
(ii) The order dated 20.02.2022 passed on IA
No.4 in O.S.No.1588/2022 by the LIX
Additional City Civil and Sessions Judge
(CCH-60), Bengaluru is modified as 'the
parties are directed not to create any third
party interest in respect of suit schedule 'B'
property, till the disposal of the suit'.
(iii) The trial court is directed to dispose of the
suit as expeditiously as possible, in
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accordance with law, without being
influenced by the observations made in the
order dated 20.02.2023.
(iv) The parties are directed to co-operate for
speedy disposal of the suit.
(v) In view of disposal of the main matter, all
pending applications do not survive for
consideration.
Sd/-
JUDGE
CM
